Memo to voters: Remember the Cruz case

For those who may be wondering why a criminal case that started in 1984 has emerged as an issue in this fall's election campaigns, I'd like to explain. I am referring, of course, to DuPage County's prosecutions from 1984 to 1995 of Rolando Cruz, Alex Hernandez and Stephen Buckley, which led all three men to be imprisoned for years--much of it on Death Row in the cases of Cruz and Hernandez--for a crime to which another man confessed. In the Illinois governor's race, Democrat Rod Blagojevich has cited those prosecutions in questioning the qualifications of Republican Jim Ryan, who was the DuPage County state's attorney most of that time. Lisa Madigan, the Democratic candidate for Illinois attorney general, has also criticized the related conduct of her Republican opponent, Joe Birkett, Ryan's eventual successor in the DuPage County state's attorney office.

Although I'm not a party-line type, I'm supporting both the Democrats, and the Cruz-Hernandez-Buckley cases are no small part of the reason, especially in the case of Ryan, who was the man at the top.

I represented Alex Hernandez in the final appeal that preceded the eventual dismissal of charges against him, and I came away from that experience convinced that these prosecutions were a fatal measure of Jim Ryan's character and his capacities.

I'm in my 25th year as a lawyer, eight of them as an assistant U.S attorney. I've made my share of mistakes. And, on the other hand, I know that baseless accusations of overreaching are often made against prosecutors. So I don't throw these stones lightly.

But what Jim Ryan did to Cruz and Hernandez and their one-time co-defendant Buckley can't be dismissed. These prosecutions, which arose from the kidnapping and murder of 10 year-old Jeanine Nicarico in 1983, spanned Jim Ryan's entire 10-year tenure as DuPage County state's attorney. Ryan even chose to continue a role in these cases when he left DuPage to become attorney general, by stepping into the Hernandez appeal.

Ten years earlier, soon after Ryan became DuPage state's attorney, his office had won convictions and death sentences against both Cruz and Hernandez. Then in June of that year, another little girl was killed in Somonauk in a virtually identical manner to Jeanine. The man who did it, Brian Dugan, was caught. In the course of negotiating a plea for a life sentence, he admitted not only to the Somonauk crime, but proffered intricately detailed confessions to the rape and murder of two other females--one of them Jeanine Nicarico.

DuPage prosecutors met with Dugan's lawyer. After returning to the office, and almost certainly talking to Ryan, the prosecutors dismissed what Dugan had to say. That was their business. But neither Jim Ryan nor any of his assistants fulfilled their ethical obligation to tell Cruz's and Hernandez's defense lawyers that another man was prepared to confess to the crime for which their clients were scheduled to die.

Summoned independently, the Illinois State Police conducted an extended investigation of Dugan's statements and compiled a mass of corroborating evidence. The head of that investigation, Commander Ed Cisowski, told Jim Ryan he had the wrong men.

But Ryan refused to back down. Ryan attacked Cisowski, criticized an eventual judicial ruling that found Dugan reliable, and approved his assistants' attempts to prevent subsequent juries in these cases from ever hearing Dugan's name.

The truth came out anyway. A 1995 DNA analysis of a semen specimen from Jeanine's body pointed straight at Dugan, but excluded Cruz, like Hernandez and Buckley before. Cruz was acquitted in his third trial; charges against Hernandez were dismissed, as had happened with Buckley earlier; and in 2000 DuPage County paid $3.5 million to Cruz, Hernandez and Buckley to settle their suit for violation of their civil rights in these prosecutions.

Jim Ryan was gone by then and tries these days to say little about these cases. But he is yet to express a word of apology or regret for what these three men underwent in the misguided crusade that was carried out in Ryan's name.

This rigid refusal to admit what happened to Cruz, Hernandez and Buckley is likely born of a desperation not to admit how it happened. I am familiar with the war-like atmosphere of the criminal courtroom and the excessive behavior it occasionally produces. But no amount of worldliness can excuse the pattern of prosecutorial misconduct that marked these prosecutions. I'm not talking about inadvertent oversights in the heat of battle, but what I regard as intentional efforts to convict by unfair means, with a number of court findings to precisely that effect.